Bombay High Court
Su-Raj Diamonds (I0 And Its ... vs M/S Winsome Diamonds And ... on 1 October, 2016
Bench: S.C. Gupte
sg wp3080-05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3080 OF 2005
Su-Raj Diamonds (I) And its Associates
And/Or Contracts Staff Association ....Petitioner
vs.
1. M/s. Winsome Diamonds and Jewellery Ltd.
Formerly known as
Su-Raj Diamonds and Jewellery Ltd.
And prior to that it was known as
M/s. Su-Raj Diamonds (I) Ltd.
2. The Chairman,
M/s. Winsome Diamonds and Jewellery Ltd.
Formerly known as
Su-Raj Diamonds and Jewellery Ltd.
And prior to that it was known as
M/s. Su-Raj Diamonds (I) Ltd.
3. Shri G.D. Tadvalkar,
Member, Industrial Court, Mumbai
....Respondents
....
Mr. Joy Deb Saha, President of Petitioner Union-in-person, for the
Petitioner.
Mr. T.R. Yadav, for the Respondents.
....
CORAM : S.C. GUPTE, J.
RESERVED ON : APRIL 5, 2016
PRONOUNCED ON : OCTOBER 1, 2016
JUDGMENT :
. This writ petition, filed under Article 226 of the
Constitution of India, challenges an order passed by the Industrial
Court, Mumbai on a complaint of unfair labour practice. By the
page 1 of 9
sg wp3080-05
impugned order, the Industrial Court dismissed the complaint of the
workmen, whom the Petitioner represents in the present writ
petition.
2. The complainant workmen's case is that they were
employed with the first Respondent in various capacities on a
monthly salary ranging between Rs.2,500/- to Rs.6,000/- per
month. The first Respondent had two units - one at Seepz,
employing about 2,000 employees and, the other at Goregaon,
employing about 200 employees. The first Respondent was engaged
in importing rough diamonds, polishing them at these units and
thereafter exporting the polished diamonds. It is the complainants'
grievance that the work, for which they were engaged, was purely
clerical/technical in nature. It is the complainants' grievance that
some of the workmen of the first Respondent went on strike in or
about 1997/1998. The complainants, however, did not join the
strike and continued to work with the first Respondent. By a
settlement dated 25 February 1998, signed between the Union and
the first Respondent, inter alia, providing for transfer/employment
of various groups of workmen, the workmen were grouped in four
categories under Annexures 'A', 'B', 'C' and 'D'. The workmen listed
in Annexure 'D', which included the complainants, were to be
transferred to Surat. It is, however, their case that their transfer to
Surat was temporary and made with an assurance that they would
be soon brought back to Mumbai; that notwithstanding their
transfer they continued to be controlled from Mumbai with their
wages also being paid at Mumbai. The settlement provided that, in
the meantime, so long as the workmen worked at Surat, they would
be provided a proper accommodation at Surat. It is the case of the
page 2 of 9
sg wp3080-05
complainants that believing the representations made by the first
Respondent, the complainants went to Surat and worked there from
1 March 1998 till 7 August 1998. The complainants' grievance is
that they were not paid salary from June 1998, though they
continued to work at Surat. It is also their grievance that though
they were assured of an accommodation at Surat, no proper
accommodation was provided to them at Surat. It is also their
complaint that their service conditions were also breached
inasmuch as by a purported agreement of 9 June 1998, the first
Respondent claimed to have changed their status as monthly wage
earners to daily piece rate workers. The complainants submit that
as they were not receiving salary at Surat and had no source of
accommodation at Surat and they were based in Mumbai, it was
not possible for them to continue to report at Surat and,
accordingly, they returned back to Mumbai and reported for work
at the Seepz unit from time to time. It is their grievance that though
the first Respondent promised to assign them work at the Seepz
unit, no work was actually assigned to them. It is also the
complainants' grievance that there was favouritism between the
employees of the first Respondent; that whilst some employees were
assigned work at the Seepz unit in Mumbai, the complainants herein
were not. The complainants, in the premises, filed the subject
complaint, being Complaint (ULP) No.324 of 1999, before the
Industrial Court at Mumbai. The complaint alleged unfair labour
practice on the part of the first Respondent within the meaning of
items 5 and 9 of Schedule IV of MRTU and PULP Act, 1971 ("the
Act").
3. Based on the pleadings of the parties, the Industrial
page 3 of 9
sg wp3080-05
Court, inter alia, framed issues of jurisdiction, limitation and merits
of the complaint. In so far as jurisdiction is concerned, the
Industrial Court came to the conclusion that the employees were
transferred to Surat and, accordingly, reported and worked at Surat.
They received their wages at Surat and finally abandoned the work
at Surat; and that, in the premises, it is the Court at Surat, which
alone has jurisdiction to entertain the complaint. On the bar of
limitation, the Industrial Court came to the conclusion that the
complaint being related to non-payment of wages for the months of
June and July 1998, filing of the complaint on 11 March 1998, i.e.
more than 90 days after the accrual of cause of action, was beyond
time. On merits of the complaint, the Industrial Court held that it
was the workmen, who failed to report for work; that there was no
change of service conditions; and that there was no breach of
settlement or award and no discrimination amongst workmen. The
Industrial Court, in the premises, dismissed the complaint.
4. In so far as the issue of jurisdiction is concerned, it is
pertinent to note that the complaint related both to non-payment of
wages as well as non-assignment of work. It was the Petitioner's
case that their wages were payable at Mumbai and even assignment
of work had to be done in Mumbai and that, in the premises, the
complaint of non-payment of wages and non assignment of work
lied before the Industrial Court at Mumbai under items 5 and 9 of
Schedule IV of the Act. The complaint is on the footing that the
complainants' transfer to Surat was merely temporary and for a
short period on a specific assurance that the workmen would be
called back shortly to Mumbai. It is the specific case of the
complainant workmen that even after they had been so transferred,
page 4 of 9
sg wp3080-05
they continued to be controlled from Mumbai and their wages were
also paid at Mumbai. The complainants' grievance is that since,
contrary to the settlement, the complainants were not provided
proper accommodation at Surat and since their service conditions
were changed with effect from June 1998, inasmuch as their
monthly wages were converted to piece rate and daily wages, they
refused to report at Surat and returned to Mumbai to their original
work place. Their grievance is that, despite reporting for duty at
Seepz in Mumbai, no work was assigned to them. On these facts,
the complaint clearly lies before the Industrial Court at Mumbai.
The workmen have led cogent evidence on these issues, much of
which was not seriously controverted by the first Respondent. Even
the order of the Industrial Court clearly proceeds on the footing that
the workmen actually stopped reporting for duty at Surat and
demanded work at Mumbai. (This without considering the
workmen's case of temporary nature of their transfer as also the
reasons for their refusal to report at Surat.) The impugned order
also specifically accepts the complainants' case that the
complainants continued to be controlled from Mumbai and even
their wages were paid from Mumbai; the pay slips of the workmen
were made in Mumbai and the entire correspondence was addressed
to the workmen from Mumbai. In the face of the evidence and the
observations in the order referred to above, the Industrial Court's
conclusion of lack of jurisdiction to any Court in Mumbai, is clearly
untenable. It can certainly be termed as something no reasonable
person duly instructed in law could have reasonably arrived at.
5. As for the Industrial Court's conclusion on limitation,
the same is simply based on the fact that the complaint alleges non-
page 5 of 9
sg wp3080-05
payment of wages for the months of June and July 1998 and is filed
more than 90 days after the due dates of payment. The Industrial
Court has failed to consider that apart from the question of non-
payment of wages for two months, the main thrust of the complaint
was on non-assignment of work at Mumbai, which was in the nature
of a continuous cause of action. Apart from this, the Industrial
Court also failed to consider that, by an earlier order dated 14 June
2002, on an application of the complainants (Exhibit U-17), the
delay in filing of this complaint in so far as the claim of non-
payment of wages from June 1991 onwards was concerned, was
condoned. Despite this, the Industrial Court has in the impugned
order strangely recorded that there was no application to condone
the delay. In the face of these facts and particularly, an express
condonation of delay by an order of the Court, the Industrial Court
could not have rejected the complaint on the ground of bar of
limitation.
6. In so far as the merits of the complaint are concerned,
the conclusion of the Industrial Court is based primarily on the
following aspects :
(i) The complainants' case was that some of the employees
were transferred to Surat and on their return to Mumbai were
employed at Seepz in Mumbai, whereas the complainants were not
so employed. The Industrial Court termed this case as ipse dixit and
on that footing did not consider the same;
(ii) Secondly, the order proceeds on footing that the
complainants abandoned their services at Surat and that this
page 6 of 9
sg wp3080-05
abandonment was a voluntary act on their part, since admittedly
they returned to Mumbai and, thereafter, proceeded on strike and
joined hands with the other employees of the first Respondent, who
were already on strike and, in the premises, there was no unfair
labour practice qua the complainants;
(iii) Thirdly, the Industrial Court came to the conclusion
that the settlement dated 9 June 1998 entered into between
Bharatiya Kamgar Karmachari Mahasangh and the first Respondent
inter alia provided for new production norms and payment of piece
rate daily wages and that accordingly there was no illegal change in
the service conditions of the complainant workmen.
7. The complainants had, apart from oral evidence of the
workmen, who deposed before the Court, led voluminous
documentary evidence on unequal treatment given to two sets of
workmen, including documents from the Office of the Provident
Commissioner, Kandivali, Mumbai produced in pursuance of a
summons. The Industrial Court was expected to examine this
evidence and enter a finding on whether or not there was
discriminatory and unequal treatment to different sets of workmen.
It could not have simply brushed aside the complainants' case on the
ground that it was ipse dixit. Even as regards the purported
voluntary act of abandonment of services at Surat and return to
Mumbai, the discussion in the impugned order is wholly
unsatisfactory. The order, as I have noted above, does not in terms
consider, in the first place, the complainants' case that their transfer
to Surat was merely temporary with an express assurance to shortly
call them back to Mumbai. The Industrial Court also does not
page 7 of 9
sg wp3080-05
consider satisfactorily the issue concerning the circumstances, which
the complainants claim to have led them to stop reporting at Surat
and return to Mumbai. The conclusion of the Industrial Court that
the complainants after their return to Mumbai proceeded on strike
and joined hands with the other employees of the first Respondent,
also hangs in the air without any discussion concerning evidence on
the issue. As for the purported settlement dated 9 June 1998, it was
an express case of the complainants that they had resigned from
Bharatiya Kamgar Karmachari Mahasangh and were not party to the
settlement and did not consent to the settlement. This case has also
not been considered by the Industrial Court. The Industrial Court
simply appears to have proceeded on the footing that there was a
settlement between Bharatiya Kamgar Karmachari Mahasangh and
the first Respondent and that this settlement was decisive and held
the field, without discussing whether the complainants were bound
by the particular settlement. In the premises, what broadly
emerges from a reading of the impugned order is that the major
contentions of the complainants, on which there was evidence
before the Court, went unexamined. This state of affairs clearly
warrants an order of remand, requiring the Industrial Court to
consider the issue of unfair labour practice afresh in accordance
with law and in the light of the discussion above.
8. In the premises, Rule is made absolute and the writ
petition is disposed of in terms of the following order :-
(I) The impugned order of the Industrial Court dated 25
August 2005 is quashed and set aside and Complaint (ULP) No.324
of 1999 is remanded to the Industrial Court for a fresh consideration
page 8 of 9
sg wp3080-05
in accordance with law. Since the Court has to merely proceed to
consider the merits of the case of unfair labour practices alleged by
the complainants in the light of the evidence already on record, the
Industrial Court is directed to dispose of the complaint expeditiously
and in any event, within a period of three months from today;
(II) The Industrial Court shall proceed on the footing that it
has jurisdiction to entertain the complaint and also that the
complaint is within limitation;
(III) The Industrial Court shall consider all aspects on merits
of the complaint of unfair labour practice and appropriate relief to
be granted to such of the complainant workmen as are entitled to;
and
(IV) No order as to costs.
(S.C. GUPTE, J.)
page 9 of 9
